May Doctors Refuse Infertility Treatments to Gay Patients?

Appel, Jacob M., The Hastings Center Report

One of the most sacrosanct principles of medical practice in the United States is that physicians have a right to choose their own patients as long as the patient is not in a medical emergency. During the 1980s, a minority of health care professionals invoked this prerogative in refusing to treat AIDS patients. (1) More recently, doctors incensed over malpractice premiums have refused to care for lawyers and their family members. (2) However, this sort of physician autonomy is not without certain limits--most notably the restrictions found in various federal and state civil rights statutes. No physician or hospital receiving government funding, including Medicare and Medicaid, may discriminate against potential patients on the basis of race, color, religion, or national origin, (3) and many states have expanded these protections to cover gender and sexual orientation. What remains unclear is whether physicians with bona fide religious objections to treating certain patients are exempt from these proscriptions. A California case, currently on appeal before a state court, may soon decide the matter. (4)

The plaintiff in the case, Guadalupe T. Benitez, is a thirty-three-year-old medical assistant currently living with a same-sex partner in suburban San Diego. (5) She received infertility treatments at the North Coast Women's Care Medical Group starting in August 1999 and running until July 2000, when her physicians, Christine Brody and Douglas Fenton, refused to continue treating her because of her sexual orientation. According to Benitez, Dr. Brody told her that she had "religious-based objections to treating homosexuals to help them conceive children by artificial insemination," while Dr. Fenton refused to authorize a refill of her prescription for the fertility drug Clomid on the same grounds. (6) In response, Benitez filed suit under California's Unruh Civil Rights Act, charging illegal discrimination on the basis of sexual orientation. (7) The case gained widespread attention when the California Medical Association, historically friendly to gay rights, backed the two Christian physicians in their claim that their freedom of religion under the federal and state constitutions trumped the requirements of the state statute. (8) It is the CMA's position that such claims should be addressed on a case-by-case basis, rather than by a blanket rule.

The controversy in Benitez v. NCWC stands at the nexus of two competing approaches to the issue of "conscience" exemptions. On the one hand, most states have statutes that shield medical students and physicians from having to perform procedures, such as abortion and sterilization, to which they object on religious or moral grounds. Several public policy reasons are advanced for these "conscience" clauses: First, highly qualified physicians, forced to compromise their sincerely held religious beliefs, might leave the field of medicine entirely, and similarly, some prospective physicians might choose to pursue other career paths instead. Second, physicians who object to a particular procedure are not in a position to provide the level of emotional and moral support that their patients have a right to expect. In contrast, our society seems highly unwilling to tolerate physicians who refuse or limit service to an entire class of patients, even when they act out of sincere religious beliefs. It is highly unlikely that any court would permit an Orthodox Jewish physician to provide separate waiting rooms for men and women, or allow a Muslim physician to require all female patients to wear head coverings. (9) The Benitez case, however, presents an instance where both an objection to a specific procedure and to a general class of patients overlap. The physicians at NCWC are unwilling to perform a specific procedure on a general class of patients.

Two further concerns in many "conscience" cases are the impact of an exemption on the overall availability of the procedure and the social stigma and discomfort associated with being refused care. …

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